Bava Kamma 007

5:
There are behaviours of animals that are automatically considered to be vicious. That is to say that their owner must always be aware of the possibility that they will do such things so he or she cannot claim that their behaviour could not have been foreseen, the animal is tam and therefore he or she should be required to pay only half damages.

6:
The first is described as 'the tooth'. We must remember always that what is under discussion here is the use of what is called in Hebrew reshut ha-rabbim. This refers to the public thoroughfare – a street, a market place and so forth. We shall term these 'public areas' and they belong to everyone equally. Therefore everyone may use them for their own purposes, so due care and attention must be paid that the rights of others not be infringed. Animals would be herded from place to place through these 'public areas'. David is transporting wine from his vat to his store. The transportation is being done by Esau, David's donkey. As Esau ambles on through the 'public area' he notices some nice carrots on display outside Sara's greengrocer store and decides to help himself. The rule of 'tooth' lays down that David should have foreseen this possibility and taken precautions against this happening. He must pay restitution to Sara to the full value of her loss – even if this is the very first time that Esau has eaten his lunch at Sara's (or any other store).

7:
After having eaten his fill of carrot Esau ambles on down the 'public area'. The wine bottles are not loaded as securely as they might have been and poor Esau stumbles against a table outside Sam's pottery store and a whole stack of earthenware jars fall to the ground and are smashed. The rule of 'foot' lays down that David should have foreseen this possibility and taken precautions against this happening. He must pay restitution to Sam to the full value of his loss – even if this is the very first time that Esau has done such a thing.

8:
'The vicious ox' refers, of course, to an animal for whom this is not a first offence. Sara's cow is ambling through the 'public area'. She – the cow, not Sara – catches on her horns some underwear that Leah had hung out to dry in the sun. This cow had never done such a thing before. Nevertheless Leah sues Sara for damages. The cow is found guilty and Sara must pay half the value of the loss sustained by Leah. If this happens again the following day Sara will have to pay full damages for this second offence.

9:
If, however, Leah had hung out her smalls in her front garden and Sara's cow made her lowing way through the gate and did the same thing Sara will have to pay full damages – even for a first offence – because she should have taken precautions to see that her cow would not intrude her presence into private property.

To be continued.

In[BK004] we learned from the mishnah that

Elaine Friedland asks:

How would Jewish law treat the case of a person who falls on a broken sidewalk which the (1)property of a local government, or (2) property of an individual.

I respond:

In today's shiur I have explained that the 'public area' belongs to everyone equally – which is tantamount to saying that it belongs to no one in particular. If there is a hazard in the 'public area' and that hazard causes me damage I cannot sue the person who put it there because he had every right to leave it where it was. The Gemara [BK 27b] deals with just such an issue when it expounds on the first mishnah of chapter 3. In brief, the Gemara there says that people using the 'public area' must look where they are going. However, if the hazard was placed in such a manner that a passer-by could not have seen it – just round a corner, for example – then there is a liability. Thus it transpires that it makes no difference who is the owner of the hazard or who put it where it was: as long as it is in the 'public area' and reasonably placed passers-by must look where they are going.

A propos the content of today's shiur you may be interested in some information that was sent to me quite some time ago by Jay Slater. He writes:

If you decide to teach Bava Kama in the future, you may find this link of interest, especially the following quote:

Ten of the 21 fatalities involved attacks by individual bulls, six involved attacks by individual cows, and five involved multiple cattle. In seven attacks (whether witnessed or not), the bull or cow was known to have exhibited aggressive behavior in the past.

I respond:

Thank you, Jay. It would appear that Plus ça change plus c'est la même chose [the more things change the more they stay the same].